In Perez –Cordero v. Wal-Mart Puerto Rico, Inc. et al., the U.S. District Court for the District of Puerto Rico granted summary judgment, thereby dismissing a sexual harassment claim brought against Wal-Mart.  The male plaintiff alleged that his female supervisor subjected him to unwelcomed physical touching, overt physical and verbal sexual advances, embarrassing sexual remarks, public scolding, exclusion from meetings and trainings, threats of discipline and poor performance reviews, scrupulous examining of his work and the assignment of less desirable tasks.  The 1^st Circuit Court of Appeals overturned the lower court’s decision in favor of the male employee.                Despite the barrage of constant and varying harassment and retaliation, the plaintiff continued to do his job well despite the fact that he was suffering severe emotional distress at the hands of Santiago.   In their argument, Wal-Mart attempted to use the plaintiff’s perseverance against him.  Wal-Mart argued that the boss’ behavior could not have been severe and pervasive if the plaintiff was still doing his job well.  In support of their position Wal-Mart argued that during the time of the alleged harassment Perez-Cordero turned down a promotion, received pay for unused vacation time, and received positive performance reviews. The 1^st Circuit found that those factors did not indicate that Santiago’s behavior was not severe and pervasive as to affect the day to day work conditions.   In fact, the 1^st Circuit is unwilling to find Perez-Cordero’s perseverance at his job, despite the daily sexual harassment and retaliation he was subjected to and the distress it caused him, as a negative.  Rather, the court declared that in order for sexual harassment to be severe and pervasive so as to alter the terms and conditions of employment an employee is not required to falter as a result of the environment.  If the court had found otherwise it would essentially be punishing an employee for their unwillingness to buckle under the pressure of their tormenter; thereby requiring an employee to fail at work before a claim would become actionable.   The 1^st Circuit also reversed the District Court on the dismissal of Perez-Cordero’s retaliation claim.  The Court found that the record showed enough evidence that as a result of Perez-Cordero’s complaints the discriminatory harassment continued to increase.  The fact that some of this evidence is also applicable to Perez-Cordero’s claim of hostile work environment sexual harassment does not bar the evidence from also being considered under a separate claim of retaliation.  The same evidence may be used in assessing the sufficiency of both claims. 

Davis & Davis, P.C. only has 5 full-time attorneys, but this small firm continues to get recognition from multiple sources.  Partner Patricia Davis was selected to be one of Massachusetts ‘Super Lawyers’ for 2011.  Partner John Davis was again selected as a Rising Star.  Davis’ associate, Suzie Herold, was also selected for the honor.  David and Herold have also been recognized for their success in winning a MCAD public hearing on the theory of associational race discrimination in the workplace, a case of first impression that is being challenged on appeal.  Davis and Herold have represented many high profile clients in the past year, many of which have garnered media attention at the local and state levels, including their representation of a minor child who was taunted at an elementary school for perceptions regarding the child’s sexual orientation.

Attorney John Davis has won a case of first impression in the Commonwealth of Massachusetts. Davis convinced the MCAD that his client, a Caucasian employee, was subjected to unlawful race discrimination, by his Caucasian boss, based upon racial slurs directed at the client’s fiancée, who is Jamaican. Davis accused the company’s boss of engaging in unlawful associational race discrimination and the MCAD accepted the theory and awarded Davis’ client $50,000.00 in emotional distress damages. The MCAD also issued a $10,000.00 civil penalty against the Respondents.
While employment-based associational discrimination claims have not gained significant traction in Massachusetts, Davis points out that the theory has been adopted by the MCAD relative to housing and religious discrimination, as well as a number of other jurisdictions. As expected, the decision, which was reported on the front page of Lawyer’s Weekly, fetched a number of disagreeable comments from numerous defense attorneys.

In June, Attorney Davis gave a presentation to the North Reading Chamber of Commerce about Employment Law Hot Topics. The well attended function drew dozens of small to mid-size businesses. Attorney Davis discussed issues such as how to avoid misclassification of workers as independent contractors, how to best utilize non-compete agreements to protect a business’ trade secrets and proprietary information, an overview on sexual harassment law and training and the issue of undocumented workers. Attorney Davis then opened the floor to a general ‘question and answer’ session.

In May, Attorney Davis again participated in a forum at the New England College of Law in which he and the panelists discussed a wide variety of topics ranging from how to open and run a successful law practice to how to spot and avoid ethical issues in the practice of law. This was his 4th year participating on the panel.

In May, Attorney Davis was a panelist at the Massachusetts Continuing Legal Education (MCLE) panel on how to obtain a Probable Cause finding at the Massachusetts Commission Against Discrimination. Attorney Davis and the panelists received high praise from the audience, which was comprised of other attorneys and Human Resources personnel.

Attorney Davis was a featured panelist at the Regional Employment Law Conference for the National Employment Lawyers Association. Attorney Davis spoke on the issue of “How to Run a Successful Employment Law Practice.” The conference enjoyed a great turnout with attorneys from all over New England.